Rule 104. Preliminary questions

Preliminary questions.

(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition or may admit that evidence subject to the introduction of evidence sufficient to support such a finding.

(c) Hearing or presence of jury. In criminal cases, hearings on the admissibility of confessions or evidence alleged to have been obtained unlawfully shall be conducted out of the hearing and presence of the jury. Hearings on other preliminary matters shall be conducted out of the hearing and presence of the jury when the interests of justice require.

(d) Testimony by accused. The accused does not, by testifying at a preliminary hearing on the admissibility of a confession, become subject to cross-examination as to other issues in the case.

(e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Committee Notes

Advisory Committee’s Notes Section (a). Questions of admissibility generally. Like preexisting Alabama law, and like the corresponding federal rule, this section recognizes that preliminary questions intended to establish conditions precedent to admissibility are for the court rather than the jury. C. Gamble, McElroy’s Alabama Evidence § 464.01 (4th ed. 1991); Fed.R.Evid. 104. This principle applies when the judge is called upon to decide whether a statement was sufficiently contrary to a declarant’s interest to qualify for admission under the “declaration against interest” exception to the hearsay exclusion. See Ala.R.Evid. 804(b)(3). A similar application arises when the judge decides whether a witness is “unavailable,” so that the witness’s statement can come within those hearsay exceptions carrying the threshold requirement of unavailability. See Ala.R.Evid. 804(a); Lundy v. State, 539 So.2d 324 (Ala.Crim.App.1988). This principle is also applied when a trial court determines whether a witness’s qualifications authorize the witness to testify as an expert. See Ala.R.Evid. 702. When the preliminary question is of a factual nature, the judge “will of necessity receive evidence pro and con on the issue.” Fed.R.Evid. 104 advisory committee’s note. In such instances, this section (a) provides that evidence rules generally do not govern the process whereby the judge determines whether the facts governing the preliminary questions exist. Stated differently, the judge, while determining the preliminary question, may hear evidence that itself may not be admissible. A rule making the exclusionary evidence rule inapplicable to the evidence governing preliminary questions has been advocated by imminent authority. E. Cleary, McCormick on Evidence § 53 (3d ed. 1984). A judge, for example, may have to hear what a witness claims to have seen before making the preliminary determination of whether the witness does indeed possess firsthand knowledge sufficient to allow the witness